1 2025:CGHC:8090-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 861 of 201 9 (Arising out of judgment of conviction and order of sentence dated 08.05.2019 passed by the learned Special Judge (NDPS Act) North Bastar, Kanker (C.G.), in Special Criminal Case No. 35/2018) 1 - Ritesh Meshram S/o Late Tarachand Meshram Aged About 34 Years R/o Vill- Near Mata Mandir House No. 145, T.T. Nagar, Bhopal District : Bhopal, Madhya Pradesh. 2 - Vijendra Vahne S/o Dinesh Vahne Aged About 29 Years R/o New Basera, Kotra, Nehru Nagar, Block No. 4, Bhopal District : Bhopal, Madhya Pradesh. 3 - Vinod Bathre, S/o Munnalal Bathre, Aged About 29 Years R/o Shhalwada, Tahsil Pipariya, District Hosangabad District : Hoshangabad, Madhya Pradesh ... Appellants versus 1 - State of Chhattisgarh through Police Station Charama, District Kanker Chhattisgarh. ... Respondent A ANNAJEE RAO Digitally signed by A ANNAJEE RAO 2 For Appellants : Mr. Ravindra Sharma, Advocate For Respondent/State : Mr. Arvind Dubey, Govt. Advocate DB: Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board) (17.02.2025) Sanjay Kumar Jaiswal, J, 1. Invoking jurisdiction of this Court under Section 374(2) of the CrPC, appellants Ritesh Meshram, Vijendra Vahne and Vinod Bathre herein have preferred this criminal appeal challenging the legality, validity and correctness of the judgment of conviction and order of sentence dated 08.05.2019 passed by the learned Special Judge (NDPS Act) North Bastar, Kanker (C.G.), in Special (NDPS Act) Criminal Case No. 35/2018 by which the appellants have been convicted and sentenced as under:- Conviction Sentence & Fine U/s 20(b)(ii)(C) of Narcotic Drugs and Psychotropic Substances Act, 1985 R.I. for 15-15 years and fine amount of ₹1,50,000 – 1,50,000/- each in default of payment of fine, additional RI for 3 years each. 2. In this case, it is alleged that on 11.06.2018 at about 4.40 p.m., appellants were found illegally transporting a huge 3 commercial quantity of 90 Kgs of narcotic substance (ganja) in 20 packets including iron straps weighing 3 Kgs., in Tata Vista Car bearing Regn.No.MP-39-C/1172 . 3. The case of prosecution is that on 11.06.2018 the inspector of Police Station Charama Brijesh Kushwaha (P.W.10) received information from an informer that three persons were coming from Kanker in the said offending vehicle carrying illegal contraband (Ganja), which was recorded by him in Rosnamcha Sanha No.577 and a notice was issued for presence of witnesses through constable Visheswar Poste on which the constable appeared at P.S. Charama along with witnesses, Jitendra Sonkar (PW-9) Hemraj Ramteke (PW-3), Panchnama (Ex.P-10) was prepared to inform the witnesses about the informer’s information and the said Panchnama was prepared as Ex.P-11 in presence of the witnesses. 4. The information so received was sent to Police Sub- Divisional Officer Kanker by way of Ex.P-02 through Constable No.36 Visheshwar Poste under Section 42 of the NDPS Act. The Reader of office of SDO(P) received the information and acknowledged it and it was also informed by the Reader that the SDO(P) is out of the Headquarters. Keeping in view the possibility of the accused hiding the goods and absconding, the accompanying staff Assistant 4 Sub-Inspector Rajkumar Netam; Constable No. 488 and Crime Scott Kanker’s Head Constable Arjun Markam and Constable Yashwant Netam as also witnesses Jitendra Sonkar (PW9) & Hemraj Ramtek (PW3) reached the spot. After registering the Rosnamcha Sanha No.581 with necessary documents, and after conducting MCP proceedings in front of Police Station they were waiting for the arrival of offending vehicle as per the information given by the informer. When a white coloured Vista car No. MP- 39-C/1172 was coming fast from Kanker, it was intercepted by the accompanying Police in front of the Police Station and on asking the names of the three suspects sitting in the vehicle, they told their names as Ritesh Meshram, Vijendra Vahne and Vinod Bathre and they belong to Bhopal and one accused told his native place as Shahalwara, Pipariya. 5. The further case of prosecution is that the accused were informed that they can get themselves searched by the Police or in presence of any gazetted officer, on which, they gave their consent for getting themselves searched by the Police, in respect of which Panchnama Ex.P-12 was prepared and the accused were asked to search the police staff present at the spot, then they searched the staff and found that no objectionable narcotic material was 5 available with the police staff, for which, a Panchnama was prepared vide (Ex.P-13) and the accused signed it. 6. Regarding search of accused, they were asked to search the independent witnesses Jitendra Sonkar (P.W.9) and Hemraj Ramteke (P.W.3) present at the scene of incident. On searching these witnesses, no objectionable material or narcotic-substance was found from these witnesses and in this regard, Panchnama (Ex.P-14) was prepared and signed by the accused. 7. It is also the case of prosecution that on searching the offending vehicle on the spot in presence of witnesses, several bundles of brown and blue coloured packets were found hidden inside the vehicle below the seat for which Panchanama (Ex.P-15) was prepared. 20 packets of Ganja were recovered from the joint possession of the accused and Panchnama (Ex.P-16) was prepared and on giving notice (Ex.P-34) to the accused to produce valid documents regarding transit of said contraband, the accused did not produce any valid document. 8. The recovered contraband was identified by the witnesses who identified it as Ganja by smelling and rubbing, for which Panchnama Ex.P-17 was prepared. Constable No. 488 Sitaram Netam was issued a duty certificate (Ex.P-1) and was sent to bring the weigher to the scene of incident, 6 on which, the constable brought the weigher Amrit Soni (PW-4) to the scene of incident. On physical verification of electronic scale in presence of witnesses, the said scale was found to be correct, for which, scale verification Panchnama (Ex.P-18) was prepared. 9. When 20 packets of recovered ganja was weighed by the weigher Amrit Soni (P.W.4), the gross weight of the seized goods were found to be 90 Kgs and 20 empty polythene packets were found to weigh 1.200 kgs, for which, Tol Panchnama was prepared as Ex.19. Then the material was taken from packets and mixed and when all the packets were opened and put in a plastic bag, 4 pieces of iron strap weighing 3 kgs were recovered from those packets, which were separated. Then again the Ganja was weighed and on reweighing, the net weight of narcotic substance was found to be 87.300 kgs, for which, a Samaras Panchnama was prepared by Ex.P-20. Out of the said seized goods, four sample packets of 500 grams each were prepared for chemical testing and remaining packets were resealed and sample-Panchnama (Ex.P-21) was prepared and the sample packets were sealed with a white cloth by preparing sample seal Panchnama (Ex.P-22). 10. Further prosecution case is that memorandum statements of accused Ritesh was taken vide Ex.P-23 and 7 on his statement the said drug was recovered from the offending vehicle and certain currency notes were recovered from accused Vijendra and Ritesh. After seizure of the vehicle and the narcotic-drug, seizure Panchnama (Ex.P- 5) was prepared and a separate seal panchnama Ex.P-35 was prepared regarding sample seal. Thereafter, the accused were arrested and their family members were informed. The Map panchnama of the place of incident was prepared by the Police and the Patwari. The seized material and accused were handed over to the store house in- charge Head Constable Pradeep and got acknowledgment by Ex. P-26. The FIR was registered by Ex.P-29 at Police Station Charama. Regarding the entire proceedings, a report u/s 57 NDPS Act was prepared and sent to the S.P. Kanker through SDO(P) Kanker as per Report vide Ex.P-40. The seized items were sent to the FSL Raipur through SP Kanker for chemical testing and thereafter, the FSL test report was received by Ex.P-43, according to which, Ganja was found in sample packets. During the course of investigation, the statements of witnesses were recorded and thereafter, the charge sheet was filed. 11. The prosecution in order to prove its case has examined in all 10 witnesses and exhibited 48 documents. Statements of appellants were recorded u/s 313 of Cr.P.C. 8 wherein they denied the guilt and pleaded innocence and false implication. However, the appellants in support of their defence neither examined any witness nor exhibited any document. 12. The learned trial Court after appreciating the oral and documentary evidence available on record, by impugned judgment, proceeded to convict the appellants and sentenced them as mentioned in the opening paragraph of this judgment, against which, this appeal has been preferred. 13. Learned counsel appearing for the appellants submits that the learned trial Court is absolutely unjustified in convicting the appellants for offence u/s 20(b)(ii)(C) of the NDPS Act, as the prosecution has failed to prove the said offence beyond reasonable doubt. He further submits that the independent witnesses namely Hemraj Ramteke (P.W.3) and Jitendra Sonkar (P.W.9) have not supported the prosecution case and even the weigher of ganja namely Amrit Soni (P.W.4) has denied to have weighed the seized Ganja. He further vehemently argues that the provisions contained u/ss 42(2) & 50 of the NDPS Act have not been complied with and as such, appellants herein deserve to be acquitted of the charge. Hence, it is prayed by him that sentence of the appellants may also be reduced suitably or 9 the present appeal may be allowed in full or in part. 14. Per-contra, learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. He further submits that though the independent witnesses have not supported the prosecution case, but the Investigating Officer Brijesh Kushwaha (PW-10) has proved the case of the prosecution beyond doubt and, therefore, the case of the prosecution cannot be said to be vitiated. Learned State counsel further submits that the provisions contained u/ss 42 & 50 of the NDPS Act have satisfactorily been complied with by the prosecution in the present case. As such, the conviction and sentence passed by the learned trial Court against the appellants is well merited and, therefore, present appeal deserves to be dismissed. 15. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 16.In the case on hand, on the date of offence i.e. 11.06.2018, illegal contraband i.e. Ganja was recovered and seized from the possession of the appellants who were the inmates of the offending vehicle vide seizure Panchnama (Ex.P-16) 10 and seizure memo Ex.P-4 was prepared in presence of independent witnesses P.W.3 Hemraj Ramteke & P.W.9 Jitendra Sonkar. However, both the said witnesses have not supported the prosecution case. P.W.4 Amrit Soni, who is said to have weighed the ganja has denied to have weighed the seized contraband (Ganja) and further he has entirely denied the weighing procedure of ganja as narrated by the authorities. But the Investigating Officer Brijesh Kushwaha (P.W.10) has duly proved the seizure of Ganja from the appellants vide Ex.P-4 & Ex.P- 16. In this regard, their Lordships of the Supreme Court in the matter of P.P. Fathima v. State of Kerala 1 held that mere fact that a Panch witness did not support the prosecution case by itself would not make the prosecution case any less acceptable, if otherwise the court is satisfied from the material on record and from the evidence of the seizing authority that such seizure was genuinely made and observed in Para-07 as under: “7. Learned counsel then contended that in view of the fact that the Panch witness to the seizure has not supported the prosecution case, the seizure cannot be accepted. We have repeatedly held that the mere fact that a Panch witness does not support the prosecution case by itself would not make the prosecution case any less acceptable if otherwise the court is satisfied from the material on record and from the evidence of the seizing authority that such 1 (2003) 8 SCC 726 11 seizure was genuinely made. In the instant case also we are satisfied that from the evidence of PWs. 1 and 2 the seizure has been proved by the prosecution. Therefore, this argument also fails.” 17.The NDPS Act is a complete Code in itself. Once the procedure prescribed in Sections 42, 43, 49 & 50 is scrupulously followed, it was for the accused, from whose possession the substance is recovered, to explain how he/they came into possession of the same. It has also been held by their Lordships of the Supreme Court in Mukesh Singh v. State (NCT of Delhi) 2 that it is not always necessary to corroborate the testimony of police officials, through the testimony of independent witnesses. 18.In the matter of Dharampal Singh v. State of Punjab 3 it has been held that lack of independent witness is not fatal to the case of the prosecution. By adopting same analogy, it has further been held in Rizwan Khan v. State of Chhattisgarh 4 that the independent witnesses turning hostile, cannot be a ground for acquittal under the NDPS Act. 19.As such, from above analysis on the point, it is vividly clear that merely because seizure witnesses have not supported the prosecution case, it cannot be said that the entire 2 (2020) 10SCC 120 3 (2010) 09 SCC 608 4 (2020) 09 SCC 627 12 prosecution’s case stands vitiated. More particularly, in the present case, Investigating Officer, namely, Inspector P.W.10 Brijesh Kushwaha has duly proved and supported recovery and seizure of Ganja from the appellant vide seizure Panchnama Ex.P-16 and seizure memo (Ex.P-4). The FSL report (Ex.P-43) also shows that Ganja was found in samples/Articles A, B, C, D which were taken from the contraband seized from the appellants from the spot. Therefore, we do not see any good ground to disbelieve the fact of recovery and seizure of Ganja from the appellants on the date and time of the offence and, as such, the findings recorded by the learned trial Court in this regard, is liable to be and is hereby affirmed. We hereby hold accordingly. 20. The another contention that has been raised on behalf of the appellant is that Section 42(2) of the NDPS Act has not been complied with by the prosecution in its letter and spirit. 21. Looking to the evidence of Investigating Officer (P.W.10) and the material available on record, it cannot be said that there is non-compliance of Section 42(2) of the NDPS Act. On the basis of aforesaid evidence available on record, it cannot be held that the prosecution has failed to comply Section 42(2) of the NDPS Act in the present case. Hence, the finding recorded by the trial Court in this regard is just 13 and proper, therefore, the argument put forth in this behalf by the appellants also deserves to be and is hereby rejected. We hereby hold accordingly. 22. Another limb of argument that has been put forth on behalf of the appellants is that Section 50 of the NDPS Act has also not been complied with by the prosecution in the present case. 23. The Trial Court clearly held that from perusal of Section 50 of the NDPS Act, it is clear that the provisions of this section apply only to personal searches. According to the prosecution, the seized cannabis was kept in 20 polythene packets which were being carried in the offending vehicle driven by the appellants and thus it was under the control of the accused at the particular time. In the case of Madan Lal & Others vs. State of Himachal Pradesh reported in 2003 AIR SCW 3669, it has been held that the provisions of Section 50 of the NDPS Act do not apply to the search of a vehicle or a bag but only to personal searches. In a recent case, State of Kerala Versus Prabhu, Cr.A.No.3434 of 2024 arising out of SLP (Crl.) No.13937 of 2023 decided on 20th August, 2024, Hon’ble the Supreme Court observed that Section 50 of the NDPS Act, which outlines the procedure for conducting search of a person, applies only to personal searches and not to 14 searches of bags carried by the person being searched. Hence, the finding recorded by the trial Court in this regard is also just and proper, therefore, the argument put-forth in this behalf by the appellants also deserves to be and is hereby rejected. We hereby hold accordingly. 24. At this stage, learned counsel for the appellants submits that in view of the decision of the Hon’ble Supreme Court in the matter of Budhiyarin Bai vs. The State of Chhattisgarh, passed in CRA No. 1218/2022 (Arising out of SLP (Criminal) No. 4935/2022), wherein the conviction of the accused-appellant has been upheld, however, considering the old age of the accused (therein), who was a poor illiterate lady, the sentence has been reduced from 15 years of rigorous imprisonment to 12 years of rigorous imprisonment. Therefore, in view of the analogy laid down in Budhiyarin Bai (Supra), the sentence of the present appellants deserves to be reduced and accordingly the sentence of the appellants for the offence under Section 20(b)(ii)(C) of the NDPS Act may also be reduced. 25. In the instant case, the appellants have been sentenced to undergo rigorous imprisonment for 15 – 15 years each with a fine of Rs. 1,50,000/- for the offence punishable under Section 20(b)(ii)(C) of NDPS Act, whereas the minimum sentence of 10 years’ imprisonment has been 15 prescribed for the aforesaid offence. The factors to be taken into account for imposing higher than the minimum punishment have been prescribed Under Section 32B of the NDPS Act, 1985 which are as follows:- “32B. Factors to be taken into account for imposing higher than the minimum punishment.- Where a minimum term of imprisonment or amount of fine is prescribed for any offence committed under this Act, the Court may, in addition to such factors as it may deem fit, take into account the following factors for imposing a punishment higher than the minimum term of imprisonment or amount of fine, namely:- (a) the use or threat of use of violence or arms by the offender; (b) the fact that the offender holds a public office and that he has taken advantage of that office in committing the offence; (c) the fact that the minors are affected by the offence or the minors are used for the commission of an offence; (d) the fact that the offence is committed in an educational institution or social service facility or in the immediate vicinity of such institution or faculty or in other place to which school children and students resort for educational, sports and social activities.; (e) the fact that the offender belongs to organised international or any other criminal group which is involved in the commission of the offences; and (f) the fact that the offender is involved in other illegal activities facilitated by commission of the offence.” 26. As such, in view of discussion made here-in-above and considering the aforesaid provisions of the NDPS Act and 16 further applying the analogy laid down by Hon’ble the Supreme Court in Budhiyarin Bai (supra) to the facts of the present case which shows that as per the arrest memos Ex.P-7, P-8 & P-9 the appellants have no criminal antecedents and by profession, appellants 1 & 2 are drivers and appellant no.3 is a washerman and they are currently aged about 39 years, 34 years & 36 years respectively, and they are facing the lis since 2018 and further looking to their poor economic condition and educational background; while affirming the conviction of appellants for offence under Section 20(b)(ii)(C) of the NDPS Act, we deem it appropriate to reduce their sentence of 15 years rigorous imprisonment, as awarded to them by the learned trial Court, to 10 years rigorous imprisonment and further reduce the fine amount from Rs.1,50,000/- as imposed by the trial Court to Rs.1,00,000/-. So far as the default sentence is concerned, the same is modified to the extent that in case of failure to deposit the fine amount reduced by this Court, the appellants shall undergo further rigorous imprisonment for six months each instead of 03 years. It is ordered accordingly. 27. Consequently, this criminal appeal is partly allowed to the extent indicated herein above. 28. Let a certified copy of this order along with original record 17 be transmitted forthwith to the trial Court concerned as well as to the Superintendent of Jail where the appellants are languishing for information and necessary action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge Rao